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MEMORIAL 



JOHN A. SUTTER 



The Senate and House of Representatives 
of the United States 

TIS^ COiq^GRESS ASSEMBLED. 



WASHINGTON, D. C. : 

Printed at the Office of the "Washington Sentinel. 

1876. 



"Ties: 



MEMORIAL 

OF 

J'OHIlsr J^. STJTTEK. 

TO THK 

SENATE AND HOUSE OF REPRESENTATIVES OF THE U. S. 

IN CONGRESS ASSEMBLED. 



This memorialist shows that he has been for some years 
an humble but earnest suitor for justice at the hands of 
the National Government, upon grounds which he will 
proceed to .-et forth in as few words as possible. Now in 
his old age, and in a state of absolute penury, he is glad 
to be saved from the necessity of stating a number of facts 
personal to himself by the authentic and persuasive de- 
clarations of others, who are not only persons of the most 
exalted standing, but not at all interested, pecuniarily, in 
the result of this application for the long-withheld redress 
of such oppressive grievances as it is believed that few men 
of the present generation have been fated to undergo. 

I. The first of these testimonials (if they may be so 
called) to which the attention of your honorable bodies 
will be called, is the following extract from the well known 
opinion of Justice Campbell, delivered in the Supreme 
Court of the United States. Referring to this memorialist, 
this distinguished jurist says: 



" In two or three years after his arrival the claimant was 
commissioned b}^ the Governor of California to guard the 
northern frontier, and to represent the Government in afford- 
ing security and protection to its inhabitants against the 
incursions of the Indians and marauding bands of hunters 
and trappers who occasionally visited the valley for plun- 
der. In the year 1841 he commenced the erection of a fort 
at New Helvetia, at his own expense. It was surrounded 
by a high wall and defended by cannon. Within this fort 
were dwelling houses for his servants and workmen, and 
workshops for the manufacture of the various articles of 
necessity. There was a grist mill, tannery, and distillery 
attached to the establishment. A number of Indians were 
domesticated by him, and contributed to cultivate his fields 
of grain and defend the settlement from more savage tribes. 
He was possessed of several thousands of horses and neat 
cattle, which were under the care of his servants. There 
were collected at different times from twentj^ to fifty fami- 
lies, and there were in the course of years some hundreds of 
persons connected with the settlement. He is described as 
having been hospitable and generous to strangers, and the 
Governors of California bear testimony to the vigor with 
which he performed the duties of his civil and military 
commission." — {/See 21 Howard, p. 170.) 

"The record shows that the claimant, a native of Switzer- 
land, immigrated to the Department of California about the 
year 1839, was naturalized a citizen of Mexico, and with 
the leave of the Government formed a settlement near the 
junction of the Sacramento and American rivers, which was 
designated New Helvetia. The country was at this time 
uninhabited, except by bands of warlike Indians, who made 
frequent depredatory incursions upon the undefended settle- 
ments to the south and east of this place." 

2. General William T. Sherman recently addressed a 



letter to a personal friend, which has been subsequently pub- 
lished, in which he says: 

" To him (Sutter) more than to any single person, are we 
indebted for the conquest of Caliibrnia, with all its trensures." 

8. The Hon. J. Ross Brown, in a speech delivered by him 
on the 9th day of September last, a few weeks previous to 
his lamented decease, (addressed to the Territorial Pioneers 
of California, assembled at Pioneer's Hall, in the city ot 
San Francisco, on the 9th of September last,) thus expresses 
liimself : 

" The series of events which resulted in the acquisition 
of California by the United States maybe said to have com- 
menced prior to 1845. Without going into unnecessary de- 
tails, the Mexican nation, under the Presidency of Paredes, 
found itself in the beginning of that year on the eve of a 
war with the United States. -The department of California, 
was in an exposed position, and already the explorations of 
Lieutenant Fremont and others were attracting attention to 
the Pacific Slope. 

" At that time, John A. Sutter, a native of Switzerland, 
who had served in the armies of Napoleon, was a resident 
of California. This brave adventurer had established a 
rancho or farm near the banks of the Sacramento river. In 
order to ward off the attacks of hostile Indians, he had 
erected a strong defensive work, then and now known as 
Sutter's Fort. Generous in his hospitality as he was brave 
and enterprising, Sutter received with open arras the adven- 
turous Americans who crowded across the plains at that 
period. He furnished them with provisions and aided them 
with his teams over the difficult passes of the Sierras. Enam- 
ored with their conversation, which breathed the spirit of 
libert}^ and possibly fired with the story of Tell and Gess- 
ler, he made a rendezvous of his Fort. The Mexican Gov- 



6 

ernmeut was prompt to resist the threatened incursion of 
the Americans. Don Andres Castillo, a Mexican officer of 
note, was dispatched to California in order to negotiate with 
kSutter for the possession of this stronghold. Castillo was 
empowered to pay for it as much as $100,000 ; and actually 
offered Sutter, in addition, several fine tracts of Mission 
land, now worth millions. 

" But Sutter, with an unselfish devotion to our interests, 
which has never been properly appreciated, rejected all 
these tempting offers, preferring to unite his fortune with 
the Americans — thus saving to the G-overnment of the 
United States an important point of defence, and a large 
expenditure of treasure. He is now old and poor. His 
lands are taken away from him. The Legislature of Cali- 
fornia has, from session to session, grudgingly given him a 
pittance of $260 a month, to enable him to prosecute his 
claims at Washington ; but the General Government has 
never recognized his services." 

4. In the city of New York, at a re-union of old Califor- 
nians, on the 26th of March, 1874, the Hon. William B. 
Farwell thus kindly alluded to this memorialist : 

" IS either time nor the occasion will permit me to follow 
in detail the effect that this wonderful discovery has had 
upon our country or the world ; but realizing as we all do 
how vast are the benefits which we have experienced, it 
becomes us to pause and inquire whether the service thus 
performed by General Sutter and Marshall has been justly 
recognized and requited either by California or by the 
nation. I am the last one who would, by the smallest word 
or intimation, cast one reflection upon the generosity of Cali- 
fornia or Californians in an individual, or in a representative 
legislative capacity ; but I am free to say that, in my judg- 
ment, California has failed to fulfill her entire duty towards 
this venerable old man, even with the provision which she has 



made for him, and which will probably carry him through 
lite. For from whatever standpoint we view the character 
and labors of General Sutter, whether as the discoverer of 
gold in California or as the benefactor and philanthropist, 
in which latter capacity he is so familiar to you all, we can- 
not fail to be impressed by the fact that no ordinary reward 
can be adequate compensation for the benefits which he con- 
ferred upon California, our country, and all mankind. If it 
be said that he was but the instrument in the hands of 
Providence in doing this work, then so much the greater 
reason that we should recognize it as such, and be generous 
in the reward, even as the patriarchs of old gave their 
offerings to God in token of their recognition of Divine 
grace and goodness." 

It should be here mentioned, in connection with the 
statement of Mr. Farwell, that whatever money it has 
pleased the State of California to cause to be paid to this 
memorialist, he has received, as he understands the matter, 
only as some indemnification for large amounts of taxes 
which he has had to pay to the Government of that common- 
wealth, in the form of taxes paid by memorialist on lands of 
which he has been subsequently deprived. 

Many other testimonials of a nature similar to those 
already presented might be here adduced ; but this memo- 
rialist will content himself with the citation of the following 
letter of Governor Lowe, of California : 

" State of California, Executive Department, 
" Sacramento^ October 6, 1865. 

" To the Senate and House of Representatives of the United States: 

"The bearer of this, Major-General John A. Sutter, was 
one of the early pioneers of this coast, and by his industry, 
bravery, and indomitable energy, did more to subdue the 



8 



savage tribes and encourage settlement than any other man. 
His name and fame is world-wide, not onlj^ in connexion 
with his early adventures, but also as being the cause of the 
discovery of gold in this State — gold having first been dis- 
covered in a mill-race which he was having constructed. 
His kindness and generosity to the early emigrants, who 
arrived here needy, was proverbial. Although possessed of 
large grants of land (conceded to him by the Mexican 
Government) at the date of the acquisition of this Terri- 
tory by the United States, the delays and expenses incident 
to the legal adjudication of these titles have stripped him of 
all his property, leaving him, in his old age, comparatively 
penniless. 

" In view of these considerations, this State at the last 
session of the Legislature granted him an annuity of three 
thousand dollars per annum for five years. He now has it 
in contemplation to ask of Congress some recognition of his 
services, with compensation, and I earnestly commend his 
claim to the favorable consideration of Congress. 

"Very respectfully, your obedient servant, 

" Frederick F. Lowe, 
" Governor of California." 

The principal of those equitable grounds for relief relied 
upon by this memorialist may be thus concisely stated : 

In 1841, Alvarado, then Mexican Governor of California, 
made a formal grant to this memorialist of eleven leagues of 
land, comprising what is known as New Helvetia, the said 
memorialist having already faithfully complied with the con- 
ditions prescribed by the laws of Mexico in the settlement 
and occupation of lands granted by the Government for these 
purposes. 

1. In 1845 this memorialist received from Mitcheltorena, 
then Governor of California, the further grant of twenty-two 
leagues of land, called Sobrante^ (surplus). 



9 



This last grant was made, as is not denied, in the course 
of an insurrection against the authority of the said Mitchel- 
torena ; was one of the last acts of this Governor, and the 
grant was expressly made in consideration of the valuable 
civil and military services of the said memorialist. 

Both of these grants were afterwards confirmed hy the 
Board of Land Commissioners appointed for the investiga- 
tion of land titles in California. The confirmatory action 
of this Board received afterwards the deliberate ratification of 
the United States District Court for the Northern District of 
California. An appeal was taken on the part of the United 
States, in both cases, to the Supreme Court of the Union. 
This tribunal approved the grant for eleven leagues, but dis- 
approved the action of the District Court and Board of Land 
Commissioners in reference to the second grant upon grounds 
so manifestly technical as to justify, on the part of this me- 
morialist, something of a mingled feeling of regret and sur- 
prise. 

In a strictly legal aspect it may be stated, without fear of 
contradiction, that the Sobrante grant was made upon val- 
uable and meritorious consideration —the previous rendi- 
tion by this memorialist of both civil and military services to 
the Government from which his title purports to have been 
derived. He had acted as the agent and representative of the 
Mexican Government in a remote and unsettled province, 
and had advanced considerable sums of money, and con- 
tributed of his means to sustain the constituted authorities. 
In the language of the Supreme Court itself: " In the civil 
commotions that overturned the power of Mitcheltorena, he 
(the present memorialist ) was the principal stay of his ad- 
ministration." In the opinion of the Board of Land Com- 
missioners in California, delivered by Commissioner Thomp- 
son, a mostenlighteneJ and conscientious man, the ground is 
clearly and emphatically taken, that this grant was r.ther an 
act of purchase than a grant of the ordinary kind ; in other 
words, that the land in question was actually bought and 



10 

paid for by the services which memorialist had rendered to 
the Government. Judge Thompson says : "• This evidence 
indicates clearly the services in consideration of which the 
grant was made, and is sufficient to constitute Captain Sutter 
a purchaser for a pecuniary consideration to the extent of 
his interest in it." The terras of the grant, " for good con- 
duct and services" harmonize with that view, 

2. This memorialist had undisputed possession of the grant 
for years, up to the discovery of gold ; maintained his pos- 
session for years thereafter, and prosecuted his said claim 
before the Courts of the United States with the greatest 
assiduity and at most enormous expense ; so that no want 
of diligence on his part can be suggested. 

3. The treaty of Guadalupe-Hidalgo provides that " Mex- 
icans now established in territories previousl}^ belonging to 
Mexico, and who remain for the future within the limits 
of the United States, as defined by the present treaty, shall 
be free to continue where they now reside, or to remove at 
any time to the Mexican Republic, retaining the property 
which they possess in the said territories, or disposing there- 
of and moving the proceeds wherever they please without 
their being subjected to any contribution, tax, or charge 
whatever. It is a recognized principle of international law, 
that treaty stipulations are to be interpreted liberally ; and 
it is difficult to understand how it can accord with the in- 
tent and spirit of this treaty, that the memorialist being in 
possession of the land in question, acquired, in the manner 
already stated — his title to which had been more fully estab- 
lished by the continuous acquiescence of that Government 
in such possession — and when this title had also been con- 
firmed by the Commission appointed by our Government to 
adjudicate such title, should be subjected to years of expen- 
sive litigation in the courts of the country to which the Ter- 
ritory was ceded to maintain a contested title, while, in ad- 
dition to the enormods expenses thus incurred, he had to 
bear the heavy burden of taxes upon the land of which he 
was afterwards dispossessed. 



11 



In fact, the laws providing: for an appeal to the Supreme 
Court ill cases of contested land titles, have ever been felt to 
be a serious grievance in those States and Territories which 
have been acquired by cession from foreign States. Among 
the various instances in which this feeling has found formal 
expression, memorialist will cite the strong and very able ap- 
peal of the Legislature of Missouri to Congress, in 1827, to 
make some further and simpler provision for settling land 
titles in that State, on the ground that the existing provisions 
of law for such appeal operated as a substantial denial of jus- 
tice in most cases; many parties being unable to meet the 
expenses attending such an appeal, and others preferring to 
forego their title to lands rather than maintain them by such 
protracted, costly, and uncertain litigation. " Look at the 
act of Congress/' is the signilicant inquiry of the appeal, 
" and say is it not a cause of complaint, when a citizen of 
Missouri is compelled to seek at Washington those rights 
which, under the foreign government, were not disputed, 
and must pay the immense costs of a Federal land suit even 
when he succeeds." 

4. Memorialist had been subjected to a very great outlay 
of money not only in the maintenance of his title, but also 
in the occupanc}' and improvement of this grant. The sur- 
veys of it had cost him $20,000, and he had paid out in taxes, 
before the decision of the Supreme Court, over $80,000. 
More than this, he had given titles to a large part of the 
second grant under deeds of general warranty, which, after 
this decision, he had to make good, at a great sacrifice, out 
of the first grant, so that the confirmation of his title to 
this grant was comparatively of little advantage to him. 

The cost of the grant to memorialist can be appropriately 
estimated as follows : 

Expenses in money and services which formed the 

original consideration. of the grant $50,000 

Surveys and taxes on the same 50,000 

Carried over $100,000 



12 



Brought over $300,000 

Cost of litigation, extending through years, includ- 
ing fees to eminent counsel, witness fees, travel- 
ing expenses, &c 125,000 

Amount paid out to make good the covenants of 
deeds upon the grant over and above what was 
received from sales 100,000 

Total amount $325,000 

It is a part of the history of this Republic itself, that 
when, after the acquisition of California, it was pro- 
posed in Congress to bring up for investigation before a 
Board of Commissioners, appointed for this purpose, all the 
land titles then existing in the hands of Mexican grantees, 
several American statesmen of high consideration objected 
strongly to this proceeding, denouncing it as a flagrant vio- 
lation, both of the letter and spirit of the Treaty of Guada- 
loupe-Hidalgo, and predicting great injustice and oppression 
as likely to grow out of this measure towards the holders 
of land in this far-oif region. Colonel Benton himself, in 
a well known speech, declared that Congress was about to 
open a new dooms-day book in California. This memorial- 
ist is not prepared to decide how far this prophetic language 
has been verified in other instances ; but he is well satisfied 
that no Saxon vassal of William the Conqueror ever had 
more reason to complain of palpable and indefensible injus- 
tice than it has been his lot to suft'er. 

The value of the grant now in dispute to this memorial- 
ist, had it been ultimately confirmed to him, would, upon 
the most moderate estimate, have reached the sum of 
$1,000,000. 

The statement voluntarily made by the Hon. Robert 
J. Walker, and which is one of the papers herewith sub- 
mitted, is well worthy of consideration ; for he asserts and 
demonstrates that the claim of this memorialist is " a 



13 



genuine and meritorious " one. This distinguished jurist 
adds : 

"I do !iot presume to criticise the decision of this great 
tribunal (the Su[)rerae Court). I considered the grant valid, 
as had also the Board of Land Commissioners and the Dis- 
trict Court of California. But without entering into the 
question of the technical legality of the grant, that it was 
genuine and meritorious cannot be dovhted. That General 
Sutter has rendered most important services to the United 
States is quite certain; that he has lost everything, and by 
no default of his, is well known in California." 

It is certainly in no spirit of disrespect to the highest 
appellate court in the land, that this memorialist feels 
called upon to superadd one or two suggestions. He 
will not complain that eminent counsel, in the argument 
of this case before this august tribunal, urged that con- 
siderations of folicy should prevent the confirmation of 
so large a grant of valuable lands to a single individual. 
The proposition that because Governor Mitcheltorena was 
temporarily absent from the capital when the grant in 
question was made, seems to claim some little consid- 
eration mainly in consequence of its having been to some 
extent the subject of remark in the opinion of the Supreme 
Court itself. The idea has been advanced that this Sohrante 
grant ought not to be recognized as a valid act of civic 
administration, because it did not occur at that precise 
locality where the governmental functions were ordinarily 
performed. An additional suggestion has been thrown out 
to the effect that as this particular grant was made for the 
benefit of one on whose aid the Government was chiefly rely- 
ing for the putting down of the existing insurrection against 
its authority, there is reason to suspect that it may be in 
some degree attributable to moral compulsion. 

The truth of the matter manifestly appears to be (as is 



14 

now shown by unquestionable testimony) that this grant 
had been orally promised to be made long before the mili- 
tary exigency referred to arose, and would, in point of fact, 
have been consummated but for the accidental absence from 
the capital of the Secretary of State. The subsequent ser- 
vices of this memorialist only increased his claim to the 
grant antecedently promised ; and based, as already shown, 
upon services some time before rendered by him, it is diffi- 
cult to perceive how this anterior claim could be extin- 
guished or enfeebled by the rendition of additional services 
on the part of this memorialist. The term Sobrante (surplus) 
applied to this grant, added to the fact that it was of con- 
tiguous territory to the former, and included within the same 
natural boundaries, shows that it was in the contemplation 
of the Mexican Government when it made that of New 
Helvetia ; and this view is strengthened by the considera- 
tion that such surplus or additional grant was in accord- 
ance with the provisions of the old Spanish law, inherited 
by Mexico, regulating colonial settlements. (See Report of 
Alexander Hamilton, Land Commissioner, State Papers, 
Public Lands, vol. IIL) 

In reference to the allegation that Mitcheltorena's leaving 
his capital, and putting himself at the head of his army in 
order to subdue an insurrection, thereby abdicated his civil 
trusts, or that his powers as a civil functionary were thereby 
suspended — who can entertain a notion so fanciful and 
invalid, that reflects for a moment upon some of the most 
memorable events recorded in the world's history ? Did all 
civil authority expire when the Athenians, forced by the 
pressure of war, retreated with all that they had of prop- 
erty, including the archives of State, to their ships upon the 
ocean, before the multitudinous hosts of Persia ? Did the 
civil functions of Alexander the Great terminate so soon as 
he got beyond the boundaries of Macedon, when marching 
for the conquest of Persia? Did Xerxes suffer a similar 
deprivation of his civil authority after crossing into Europe 



15 



for the conquest, of Greece? Did the Emperors Julian, 
-Adrian, Marcus Aurelius, and numerous others who might 
be mentioned, become incapab e of issuing a valid edict 
when leading armies against foreign foes ? Was it ever con- 
tended that the famous Berlin and Milan decrees of Napoleon 
were deficient in validity, because of their not emanating from 
Paris ? Was Santa Anna ever supposed to have forfeited his 
powers as a civil ruler when leading his armies against the 
Texans in their struggle for independence, or against the 
armies of Generals Scott and Taylor '? Had the Confederates, 
in their struggle for independence, succeeded in taking pos- 
session of Washington, would the Government of the United 
States have of necessity ceased to exist for all the important 
purposes of civil rule ? 

But it is time to bring this memorial to a conclusion. 
Valid as this memorialist deems his claim to be to the 
whole amount of twenty-two leagues of land granted to 
him in the manner and under the circumstances described, 
he does not expect, or even desire, to be indemnified in full 
for all the losses he has sustained, and for the pecuniary 
detriment which he has suffered in consequence of the 
action of the Government, of which he is now complaining. 
Far from it. Nor does he desire to receive one dollar by 
way of requital for all the money he has formerly expended 
in succoring American Pioneers when placed in circum- 
stances of the greatest peril and suffering. 

He asks not one cent for such aid as he rendered to his 
adopted and profoundly honored Government in the exten 
sion of its domain to the borders of the Pacific Ocean, and 
availing itself of the untold treasures of California. He 
asks only that the Government shall secure to him so much 
of its unsold public lands as it has caused to be unjustly 
taken from him, or its equivalent in money, minus the ex- 
penses which may have been heretofore incurj-ed in the 
causing of his twenty-two leagues to be surveyed, and in dis- 
posing of the same. This would amount in money to the 



16 

sum of 97,651 acres, or $122,063, minus the expenses already 
referred to. 

This memorialist has at different times, under severe pe- 
cuniary pressure, and with hope almost extinct, manifested 
a willingDess to receive even less than is herein claimed, but 
he is not willing to believe that this Government will refuse 
to award to him at least the moderate indemnity now prayed 
for. 

It is almost unnecessary that this memorialist should re- 
mind the two Houses of Congress that there are well-known 
precedents for such action as he now invokes ; among which 
may be adduced that of (ireneral Vallejo, which is directly in 
point. He also had obtained a grant of laud from the Mex- 
ican authorities in return for services rendered by him and 
money advanced for government purposes. The Supreme 
Court decided against General Vallejo's right to the " Suscol 
Ranche ; " by which decision he was on the eve of being 
ruined ( he having sold and conveyed it by deed of general 
warranty ). when Congress, in a spirit of justice and mag- 
nanimity, passed the act of March 3, 1863, authorizing the 
entry of the laud at one dollar and a quarter an acre, by 
which he was saved from inevitable ruin. 

Confiding fully in the disposition of Congress to do in the 
premises all which may be right and becoming, this me- 
morialist now submits his claim to relief for their calm and 
unprejudiced consideration. 



LIBRARY OF CONGRESS 




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